From the National Law Journal

Judge races get meaner
Emily Heller
Special to The National Law Journal
Monday, October 25, 2004

On the eve of the 2004 judicial elections, special interest groups are flexing big muscles in state supreme court races, using both familiar and new tactics.
Remember the rancor and big bucks of the 2000 and 2002 judicial elections? They're back, and then some.
In several of the 15 states where 29 state supreme court judgeships are up for grabs on Nov. 2, key interest groups are arrayed against each other. Business, medical groups and Republicans are on one side; trial lawyers, unions and Democrats are on the other.
Among the judicial-election battleground states, Illinois and West Virginia offer the two most closely watched races for record-setting money and saturation advertising. In one race for Illinois Supreme Court, more than $5 million has been raised, smashing state and national records for a single state supreme court election.
By mid-October, candidates and some interest groups had raised a total $35 million, according to Justice at Stake, a nonpartisan Washington organization tracking judicial elections. That's already more than the $29 million mark of 2002 and coming close to 2000's $45 million.
To those pots of money and political fervor, add the explosive impact of the landmark 2002 U.S. Supreme Court decision Republican Party of Minnesota v. White, 536 U.S. 765, which says judicial candidates can't be barred from announcing their views on issues.
Citing White, interest groups have been pressing candidates to answer questionnaires that seek to pin down would-be judges on controversial issues, ranging from abortion to taxes. Some candidates are answering, but many are declining, claiming state judicial rules still restrict them from taking positions.
Special interests' new tactic
Now comes the interest groups' new tactic: Multistate litigation.
Interest groups have filed suits in federal courts, attempting to force states to throw out overly broad judicial campaign rules.
The groups filing the suits-anti-abortion and other conservative organizations-seek injunctions before the Nov. 2 elections in Kentucky, North Dakota, Indiana and Alaska.
Lead counsel in all four cases is James Bopp Jr. of Bopp, Coleson & Bostrum in Terre Haute, Ind., who was the winning lawyer in White.
So far, Bopp is 1-for-1. He scored an injunction in Kentucky; however, an Indiana judge declined to issue one.
The litigation is meant to pressure judicial candidates, said Bopp. "No more hiding," he said. "You have views and we know they influence you. Voters have . . . the power to select you. It's time for you to let them in on the secret."
The upshot of the litigation could undo rules aimed at keeping the judiciary impartial in states that choose judges in contested elections, critics said.
Long-standing judicial conduct rules "die hard," said Charles Geyh, Indiana University law professor and a member of an American Bar Association (ABA) commission examining judicial conduct rules. "Most people in the profession don't want to see them die." Yet special interests are "beating the drum," pushing judges to commit, he said. "That's going to continue."
Supreme court ads spread
In 2004, more states have seen advertising in supreme court races than ever before, according to the Brennan Center for Justice at New York University School of Law, which tracks judicial elections and advocates reform. Two weeks before election day, ads had run in 15 states, a steady increase since 2000, when ads ran in four states, and 2002, when they ran in nine, the Brennan Center found.
Abundant ads and money are putting the Supreme Court race in Illinois on top this year.
About two weeks before the election, the candidates had reported raising about $5.2 million, well above the $3.5 million spent on an entire 2000 Illinois Supreme Court campaign, said Mary Schaafsma, who follows judicial elections for the Illinois Campaign for Political Reform, a Chicago group claiming neutrality. The fund raising is a new national record for a single supreme court race, beating Alabama's $4.4 million raised in 1996, she said.
"The Supreme Court race in Illinois is at the top of the list for the business community," said Sean McBride, vice president of the U.S. Chamber of Commerce's Institute for Legal Reform. The group studies judicial candidates, determines which ones are in favor of restricting liability for corporate defendants and conducts "voter education" programs in the hopes of getting tort-reform-minded judges on the bench, he said.
"It seems like the trial lawyers are doing their thing and the business community is doing its thing," McBride said.
The race is between Republican Lloyd Karmeier, a trial judge, and Democrat Gordon Maag, an appeals court judge, who seek an open seat representing the southern Illinois district containing Madison County. The trial court there, reviled by businesses and their defenders, has become notable for its abundant class action litigation.
"Special interests are totally vested in this" election, said Schaafsma, with the Illinois Campaign for Political Reform.
The group estimates that national tort reform groups, such as the U.S. Chamber of Commerce and the American Tort Reform Association, have contributed more than $1 million to Karmeier via the Illinois Civil Justice League. Karmeier is also getting money from state medical and insurance groups.
Maag is heavily supported by the state Democratic party, which has received hundreds of thousands of dollars from personal injury lawyers, she said. Of $3.5 million in contributions to the party since July 1, at least $1.4 million of that came from trial lawyers, she said.
Notably, the Illinois ads are not about tort reform, Schaafsma said. Instead, ads praise the candidates as pro-doctor and pro-family while ripping and misrepresenting the opponent's rulings, she said. There have been allegations that Maag supporters rummaged through Karmeier's trash. The Illinois State Bar Association's committee monitoring judicial campaigns has been busy trying to sort it all out. (Illinois is among the 10 states with independent committees monitoring judicial elections and issuing rebukes when advertisements offend, according to the National Ad Hoc Advisory Committee on Judicial Campaign conduct.)
The U.S. Chamber of Commerce won't say whether it is involved in the Illinois race. McBride would say only that there are 20-some states, including Ohio, where the chamber is involved in supreme court or attorney general races.
"We go into places where we can make a difference," he said, refusing to elaborate. "It doesn't help the purpose of our program to give too much information."
Clashes in West Virginia
Similar foes are clashing in West Virginia, which, like Illinois, has partisan elections.
But in West Virginia, outside groups have launched their own ads attacking Democratic Supreme Court of Appeals incumbent Warren McGraw and his challenger Brent D. Benjamin, a Republican who practices at the corporate defense firm Robinson & McElwee in Charleston.
Bankrolled with $2.5 million, an independent group called "And for the Sake of the Kids" has run a series of television ads criticizing McGraw for a ruling on a case involving a child molester, the Brennan Center reports. The main contributor to the group is an executive of a coal company that's a big employer in the state. Critics have alleged that the coal company, Virginia-based Massey Energy Co., is involved in several suits that could come before the West Virginia high court.
The independent group also has sponsored billboards supporting Benjamin.
Meanwhile, West Virginia Consumers for Justice, funded by trial lawyers and labor unions, has run a $1 million campaign of four ads. The group calls Benjamin the business community's pawn.
As of mid-October, West Virginians had seen a barrage of 26 ads by these and other groups, including the West Virginia Citizens Against Lawsuit Abuse and the West Virginia Chamber of Commerce, plus the candidates' own ads.
The air war has been running since the primary, when the chamber and other business groups were supporting McGraw's Democratic challenger. The state chamber also was fully engaged during the primary, running a series of ads that blamed the state high court for West Virginia's economic problems.
Bopp's beef
While Illinois and West Virginia battle over tort reform, the issues are different for campaign-law litigator Bopp, general counsel to the National Right to Life Committee.
Central to Bopp's argument in all four campaign lawsuits is the claim that some states wrongly minimized the effect of the White decision on their judicial campaign rules.
After White, the ABA rewrote parts of its Model Code of Judicial Conduct, notes Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society. And that prompted supreme courts in Alabama, Arizona, California, Georgia, Louisiana, Minnesota, Nevada, New Mexico, Pennsylvania and Texas to change their rules. Some state supreme courts noted that their rules were not affected by White.
White addressed only "announce clauses" that banned candidates from announcing views on controversial issues. Eight states had announce clauses.
Most states with judicial elections have other rules barring candidates from making "pledges" or "promises" to rule a certain way in cases, or from "appearing to commit" to ruling a certain way. These rules were not at issue in White.
Bopp's main contention is that these campaign rules are too broadly written and applied. States are using them to prevent talk about issues, he said.
The analysis in White is "fully applicable" to other judicial campaign rules, he argued successfully in the Kentucky case.
State supreme courts that have not come to grips with White are "in denial," he said. Many states are "very hostile to judicial campaigning and judicial speech," he said. "There is really a rigorous rear-guard action being fought."
Under White, a judicial candidate may permissibly say, "I'm a pro-life candidate" or "Roe v. Wade was wrongly decided," Bopp said.
He agrees that rules should correctly prohibit a candidate from actually pledging or promising to rule a certain way on a case. For example, it would be wrong to say, "I will overturn Roe v. Wade when it comes before the court."
At issue in the Kentucky case, Family Trust Foundation of Kentucky v. Wolnitzek, No. 6: 04-473-DCR (E.D. Ky.), is a rule that says a candidate may make no pledge or promise other than to perform the job faithfully. Bopp argues that the rule should be rewritten to say: A candidate may not make a pledge or promise of certain results in a particular case.
Bopp's four suits-Family Trust; North Dakota Family Alliance v. Bader, No. A3-04-115 (D.N.D.); Alaska Right to Life PAC v. Feldman, No. A04-239-CIV (RRB) (D. Alaska); and Indiana Right To Life v. Shepard, No. 4:04-CV-00071-AS-APR (N.D. Ind.)-are by no means the only litigation over judicial campaign conduct rules post-White.
Cases challenging the constitutionality of various state rules have been won by judicial candidates in Ohio, Georgia and New York. Under these court decisions, candidates can affiliate with parties, personally solicit funds, and seek and give other partisan candidates' endorsements.
Though the White decision unleashed rules for judicial campaigning, the case is still pending, and once concluded could have an even larger impact, Bopp argued.
Last week, the entire bench of the 8th U.S. Circuit Court of Appeals heard the remand of White to decide the constitutionality of five other judicial rules that were part of the original suit but not at issue on appeal. Still unresolved are whether Minnesota can ban a judicial candidate from engaging in fund raising personally or affiliate with a political party, and whether a candidate can seek and offer endorsements. Bopp argues they all should be struck.
The Bopp litigation is not about judicial speech, said Roy Schotland, judicial selection expert and a professor at Georgetown University Law Center. It's to help special interest groups facilitate litmus tests on judges, he said.
"It isn't about speech. It's about abortion. That's what White was all about."
Bopp replies: "What's the matter with that?" he said. "I thought that's what elections were all about. It's about citizens choosing candidates that reflect their values."